Citation Nr: 0020947
Decision Date: 08/10/00 Archive Date: 08/18/00
DOCKET NO. 98-01 253 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Togus, Maine
THE ISSUES
1. Entitlement to service connection for the residuals of
injury to the right fourth finger.
2. Entitlement to service connection for the residuals of
injuries to the right second and third fingers.
3. The propriety of the initial ratings of 50 percent and 70
percent assigned for a major depressive disorder.
4. Entitlement to an increased (compensable) rating for
residuals of a fracture to the right fifth finger.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran served on active duty from November 1973 to
September 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1996 rating decision by the
RO which granted service connection for major depression and
assigned a 50 percent disability evaluation for this
disorder, effective June 10, 1996, the date of receipt of the
veteran's claim for service connection for a psychiatric
disorder. The RO also granted service connection for
residuals of a fracture of the right fifth finger which was
assigned a noncompensable evaluation, effective June 10,
1996. The RO denied service connection for residuals of
fractures of the second, third, and fourth fingers. The
veteran's former representative timely appealed this rating
action in October 1997.
In a rating decision of July 1999 the RO increased the
evaluation for the veteran's psychiatric disorder to 70
percent disabling, effective February 1, 1999. The RO also
granted entitlement to a total rating for compensation
benefits based on individual unemployability, effective
February 1, 1999. In this rating decision the RO also
confirmed and continued a noncompensable rating for the
residuals of a fracture of the right fifth finger and denials
of service connection for residuals of injuries to the right
second, third, and fourth fingers.
Prior to January 20, 2000, the veteran was represented on
appeal by a private attorney. On January 20, 2000, the
private attorney withdrew as the veteran's representative.
On May 12, 2000, the veteran executed a VA Form 21-22 naming
the American Legion as the service organization serving as
his representative during this appeal.
Inasmuch as the appeal concerning the veteran's service-
connected psychiatric disorder is from an original award, the
Board has framed the issues regarding this disability as
shown on the title page of this decision. See Fenderson v.
West 12 Vet. App. 119 (1999). For reasons made evident
below, the issue of entitlement to an increased (compensable)
rating for the residuals of a fracture of the right fifth
finger will be discussed below in the remand section of this
decision.
FINDINGS OF FACT
1. Residuals of injury to the right fourth finger were noted
on the service preenlistment examination, and, as such,
preexisted service.
2. The veteran's preexisting right fourth finger disorder
increased in severity during active service.
3. The veteran's claims for service connection for residuals
of injuries to the second and third fingers of the right
hand are not plausible.
4. On and after June 10, 1996, the veteran's service
connected psychiatric disability precluded gainful
employment.
CONCLUSIONS OF LAW
1. The veteran's preservice right fourth finger disability
was aggravated by service. 38 U.S.C.A. §§ 1110, 1153,
5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.306
(1999).
2. The veteran has not submitted "well grounded" claims for
service connection for residuals of injuries to the right
second and third fingers. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1999).
3. The criteria for a 100 percent rating for a major
depressive disorder on and after June 10, 1996 have been
met. 38 U.S.C.A. § 1155, 5107(a) West 19991 & Supp.
1999); 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996);
38 C.F.R. § 4.130, Diagnostic Code 9434 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
On the veteran's October 1973 examination prior to service
entrance, scars were noted over the fourth and fifth proximal
interphalangeal joints of the right hand. There was slight
limitation of active motion in these fingers, but there was
full passive range of motion. No pain or tenderness was
reported. In the physician's summary it was noted that the
veteran had injured his right fourth and fifth fingers two
months earlier. Review of the service medical records
reveals that the veteran was seen in November 1973 with
complaints of deformity of the right fourth and fifth
fingers. Evaluation revealed some tenderness on the dorsal
aspect of the fourth and fifth digits. The assessment was
Boutonniere's deformity. In January 1974 the veteran was
seen for pain in right fourth and fifth fingers after another
soldier stepped on his right hand. Examination revealed soft
tissue swelling and contractures of the proximal
interphalangeal joints of the right fourth and fifth fingers.
The impression was aggravation of an old injury. In June
1974 it was reported that the veteran's right fourth and
fifth fingers were frozen at a 45-degree angle. The veteran
was again seen in July 1974 after a right hand injury that
had occurred a couple of days earlier. Evaluation revealed
pain and minimal swelling of the proximal fourth and fifth
metacarpal areas. Flexion contractures were noted in the
fourth and fifth digits. In September 1974 the veteran was
noted to have a boxers fracture of the fifth metacarpal. On
the veteran's September 1974 examination prior to separation
from service, loss of full extension of the right fourth and
fifth fingers was noted.
In October 1976 the veteran was hospitalized at a private
facility with a history of an injury to the right fourth and
fifth fingers which occurred about four years earlier. It
was reported that he had clearly ruptured the central slips
of the extensor mechanism of the proximal interphalangeal
joints of his ring and little fingers at that time. The
veteran had no active extension of the proximal
interphalangeal joints of these fingers, but had full passive
extension of these joints. During the hospitalization the
veteran underwent the surgical repair of the extensor
mechanisms of the fourth and fifth fingers.
In April 1981 the veteran received private outpatient
treatment for pain in the fourth and fifth fingers of the
right hand after he punched someone in the jaw two days
earlier. An X-ray showed old and acute fractures of the
right fifth metacarpal. There were multiple foreign bodies
in the dorsal soft tissue of the fourth finger and a probable
phalangeal fracture of the fourth finger. The diagnosis was
reinjured boxers fracture of the right hand.
The veteran was again hospitalized at a private facility in
September 1981 for the treatment of laceration injuries to
the extensor tendon of the right third digit and the
neurovascular bundle on the radial side of the fourth digit.
The veteran underwent surgical repair of these injuries.
After a private psychological evaluation in July 1996 the
overall impression was that the veteran was very depressed.
It was said that the veteran had received no treatment for
his depression but had medicated himself exclusively with
alcohol. The veteran was said to be a very high suicide risk
and had made previous attempts. His suicidality was directly
related to his symptoms, low morale, and helplessness. It
could also be an artifact of characterological problems. The
veteran had features of a borderline personality with
significant antisocial features. The veteran's depression
was described as a significant feature of his distress.
During an August 1996 functional capacity assessment for
purposes of obtaining disability benefits from the Social
Security Administration, it was noted that the veteran had
moderate difficulty with complex tasks. Sustained
concentration was more than adequate for simple tasks. The
veteran's social skills were sub par since he was overly
sensitive to real or imagined slights.
On an October 1996 VA psychiatric examination the veteran
complained of depression ever since service. He had been
incarcerated after service and experienced a remission of the
depression upon his release. The veteran gave a history of
remote and recent suicide attempts but denied current
suicidal ideation. He complained of sleeping trouble with
frequent awakening. He spent his days passively in his home
and complained of weight gain, easy fatigability and loss of
energy. He described feelings of worthlessness and
difficulty thinking and concentrating. The veteran reported
heavy drinking as a self-medication for depression. The
diagnosis on Axis I was recurrent major depression without
psychotic features. Antisocial features were diagnosed on
Axis II. The veteran's GAF score was 45 due to the severity
of suicidal ideation, severe depression, and social and
occupational impairment.
On VA general medical examination in October 1996 contraction
deformities were reported in the third, fourth, and fifth
digits of the right hand. His grasp on the right was
described as fairly firm. Further examination of the hand
revealed some difficulty in making a complete grasping motion
of the hand which involved the third, fourth, and fifth
fingers as well as the thumb. The veteran had a fairly firm
grasp, but was unable to maintain it for more than 10 seconds
because of pain.
During VA psychiatric assessment in April 1998, the veteran
was said to appear very depressed. His speech was normal in
rate and volume and his thought processes were goal directed.
His affect was constricted. Hallucinations and delusions
were denied, as were homicidal and suicidal ideation. The
veteran was oriented to person, place, and time. Remote and
recent memory was intact. Insight and judgment were good.
On VA psychiatric examination in February 1999 the veteran
complained of problems with weight control and difficulty
sleeping. He also complained of fatigue and becoming easily
tired. He said that his concentration was a little worse
than previously. The veteran also said that his feelings of
hopelessness and low self-esteem had also worsened.
Difficulties making himself understood and in understanding
others were reported. He said that he got into a lot of
fights and thought of suicide often. Memory for recent and
remote events was fair and the veteran could remember two of
three items. Speech was relevant, logical, and easily
understood. Depression was noted, but the veteran denied any
problem with impulse control. The diagnosis on Axis I was
severe dysthymic disorder that was worsening with age. The
examiner said that the veteran had major impairments in work,
family relations, and mood. It was said that he avoided his
friends, neglected his family, was unable to work, and was
becoming more and more isolated. His Global assessment of
Functioning score was 35.
II. Service Connection for Residuals of Injury to the Right
Fourth Finger.
Under the applicable criteria, in order to establish service
connection for disability there must be objective evidence
that establishes that such disability was either incurred in
or aggravated by service. 38 U.S.C.A. § 1110. A preexisting
condition will be considered to have been aggravated by
service when there is an increase in disability during
service unless there is clear and unmistakable evidence that
such increase in disability is due to the natural progress of
the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
Scarring and slight limitation of active motion in the right
fourth finger were noted on the veteran's examination prior
to service entrance and, as such, preexisted service. A few
months after service enlistment, contracture of the right
fourth finger was noted following an injury to the veteran's
hand after another soldier stepped on it. It was stated in
the service medical record that there had been an aggravation
of an old injury. After a further injury to the right hand a
few months thereafter, the right fourth finger was described
as frozen at a 45-degree angle, and limitation of extension
of the right fourth finger was also noted on the veteran's
examination prior to service discharge. About a year after
discharge from service, the veteran underwent surgery at a
private facility for repair of a rupture the central slip of
the extensor mechanism of the proximal interphalangeal joint
of his right fourth finger. This was said to be due to an
old trauma. In view of the injuries to the right fourth
finger that the veteran sustained during service and the
clear increase in disability in that finger impairment during
service, as well as the findings of a rupture of the extensor
mechanism of the finger shortly after service, the Board
finds that the veteran's preexisting right fourth finger
disability was aggravated during service, and thus warrants
service connection.
III. Service Connection for Residuals of Injuries to the
Right Second and Third Fingers
The threshold question with regard to the issues of service
connection for residuals of injuries to the right second and
third fingers is whether the veteran has met his burden of
submitting evidence of well-grounded claims. If not, these
claims must fail and there is no duty to assist him in their
development. 38 U.S.C.A. § 5107(a): Murphy v. Derwinski, 1
Vet. App. 78 (1990). As will be explained below, the Board
finds that the veteran has not submitted evidence of a well-
grounded or plausible claim of service connection for
residuals of injuries to the right second and third fingers.
The United States Court of Appeals for Veterans Claims
(Court) has held that a veteran must submit evidence, not
just allegations, in order for a claim to be considered well
grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992).
When, as in this case, the issue involves a question of
medical diagnosis or causation, medical evidence is required
to make the claim well grounded. Grottveit v. Brown, 5 Vet.
App. 609 (1993). Lay statements by the veteran, regarding
questions of medical diagnosis and causation, are not
sufficient to establish a well-grounded claim, as he is not
competent to offer medical opinions. Espiritu v. Derwinski,
2 Vet. App. 492 (1992). The evidence must also demonstrate
that the veteran currently has a disability. Brammer v.
Derwinski, 3 Vet. App. 223 (1992).
According to a decision by the Court, a well-grounded claim
requires competent evidence of current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and a nexus
between the in-service injury or disease and current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498, 506 (1995).
On VA general medical examination in October 1996 a
contracture deformity was reported in the third finger of the
right hand and thus the first requirement for well-grounded
claim for service connection under the Caluza standard has
been met in regard to a disability involving the right third
finger. The service medical records contain no findings of
any disability of the veteran's right third finger and no
such findings are indicated until 1981, about seven years
after service, when the veteran underwent surgical repair of
the extensor tendon in that finger which had been damaged by
a recent injury. However, the second requirement for a well-
grounded claim of service connection under Caluza has been
met as regards the right third finger disorder because the
veteran is competent to state that the finger was injured in
service. Since there is no competent evidence linking the
veteran's current disability of the right third finger to
service, however, the third requirement for a well-grounded
claim of service connection under Caluza has not been met in
regard to this disability. Therefore this claim must be
denied as not well grounded.
In regard to the veteran's claim for service connection for
residuals of injury to the right second finger, the Board
notes that the record contains no competent evidence of any
sort of injury to this finger, either during service or
subsequent to the veteran's discharge from service. Since
that is the case, none of the requirements for a well
grounded claim for service connection for residuals of a
fracture of the right second finger under the Caluza standard
have been met. Therefore this claim must also be denied as
not well grounded.
IV. Increased Rating for a Psychiatric Disability.
The Board notes initially that it finds that the veteran's
claim as to the propriety of the initial ratings for his
service connected psychiatric disorder to be "well
grounded" within the meaning of 38 U.S.C.A.§ 5107(a). That
is, the Board finds that this claim is plausible. The Board
is also satisfied that all reasonable efforts have been made
to develop the evidence in regard to this claim and that no
further assistance to the veteran is required to satisfy the
VA's duty to assist him in the development of this claim as
mandated by 38 U.S.C.A.§ 5107(a).
38 U.S.C.A. § 1155 (West 1991 & Supp 1999) and 38 C.F.R. Part
4 (1995) provide that disability evaluations are determined
by the application of a schedule of ratings which is based
upon the average impairment of earning capacity. Separate
diagnostic codes identify the various disabilities. The
Board notes that the VA schedular criteria for rating mental
disorders were revised in November 1996. The Court has held
that, where the law or regulation changes after a claim has
been filed or reopened, but before the administrative or
judicial appeal process has been completed, the version most
favorable to the appellant will apply. Karnas v. Derwinski,
1 Vet. App. 308 (1991).
Under the criteria of the VA Schedule for Rating Mental
Disorders (38 C.F.R. § 4.132 Diagnostic Codes 9400-9411), as
in effect prior to November 7, 1996 (the former criteria), a
50 percent evaluation will be assigned for a psychoneurotic
disorder when the ability to establish or maintain effective
or favorable relationships with people is considerably
impaired and when reliability, flexibility, and efficiency
levels are so reduced by reason of psychoneurotic symptoms as
to result in considerable industrial impairment. A 70
percent evaluation is assignable when the ability to
establish and maintain effective or favorable relationships
with people is severely impaired and when psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment. A 100 percent evaluation is assignable with the
attitudes of all contacts except the most intimate so
adversely affected as to result in virtual isolation in the
community with totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in profound retreat
from mature behavior. There must be demonstrable inability
to obtain or retain employment.
Under the criteria of the VA Schedule for Rating Mental
Disorders (38 C.F.R. § 4.130 Diagnostic Codes 9201-9440), as
in effect on and after November 7, 1996 (the current
criteria) a 50 percent evaluation is assigned for
symptomatology resulting in occupational and social
impairment with reduced reliability and productivity due to
symptoms such as flattened affect, circumstantial,
circumlocutory, or stereotyped speech, panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short and long term memory (e.g.
retention of only highly learned material, forgetting to
complete tasks); impaired judgment, impaired abstract
thinking; disturbances of motivation and mood; and
difficulties in establishing and maintaining effective work
and social relationships. A 70 percent rating requires
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence): spatial
disorientation; neglect of personal appearance and hygiene;
difficulty adapting to stressful circumstances (including
work or a work like setting); inability to establish and
maintain effective relationships. A 100 percent rating is
warranted where there is total occupational and social
impairment, due to such symptoms as: gross impairment of
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation or
own name.
After a review of the evidence, it is the opinion of the
Board that the veteran currently meets the criteria for a 100
percent schedular evaluation under the both the former and
current criteria. The VA physician who conducted the
veteran's most recent psychiatric examination in February
1999 stated that the veteran at that time avoided his
friends, neglected his family, was unable to work, and was
becoming more and more isolated. His Global Assessment of
Functioning score was 35. Such a score also indicates an
inability to obtain and retain employment. Inability to work
due to psychiatric impairment provides a basis for a 100
percent rating under both the former and current schedular
criteria for rating psychiatric disorders.
Moreover, the Board notes that currently the veteran's sole
compensable VA disability rating is that assigned for his
service connected psychiatric disorder. It is further noted
that the RO has awarded the veteran a total rating for
compensation purposes based on individual unemployability.
The Court has stated that whenever unemployability is caused
solely by a service-connected psychiatric disorder a 100
percent schedular rating is warranted for the psychiatric
disorder. Johnson v. Brown, 7 Vet. App. 95 (1994).
Additionally, the Board notes that the Court has recognized a
distinction between a veteran's dissatisfaction with an
initial rating assigned following a grant of service
connection, and a claim for an increased rating of a service
connected condition. See Fenderson, supra. In Fenderson,
the Court held that the significance of this distinction was
that at the time of an initial rating, separate ratings could
be assigned for separate periods of time based on the facts
found, a practice known as "staged ratings". Fenderson,
supra. Since the veteran expressed disagreement with the
initial rating decision awarding service connection for his
psychiatric disorder, the claim for an increased rating for
this disability must be considered pursuant to the provisions
of Fenderson. In that regard, the Board has carefully
reviewed the evidentiary record and finds that the 100
percent schedular rating for the veteran's psychiatric
disability granted by the Board in this decision must be
assigned effective June 10, 1996, the date of receipt of the
veteran's original claim for service connection for a
psychiatric disability.
After the veteran's VA psychiatric examination conducted in
October 1996 the examiner assessed the veteran to have a
Global Assessment of Functioning score of 45 due to suicidal
ideation, severe depression, and social and occupational
impairment. Such a score is indicative of an inability to
obtain and retain employment. Again the Board notes that
inability to work due to psychiatric impairment is a criteria
for a 100 percent rating under both the former and current
schedular criteria for rating psychiatric disorders.
Therefore the veteran is entitled to a 100 percent schedular
evaluation for his service-connected psychiatric disorder
from June 10, 1996, the date of receipt of his original claim
for service connection for a psychiatric disorder.
ORDER
Entitlement to service connection for the residuals of a
fracture to the right fourth finger is granted
Entitlement to service connection for the residuals of
fractures to the right second and third fingers is denied.
Entitlement to 100 percent schedular evaluation for a major
depressive disorder effective from June 10, 1996 is granted
subject to the regulations governing the payment of monetary
benefits.
REMAND
The veteran's service connected residuals of his fracture of
the right fifth finger have been assigned a noncompensable
rating under the provisions of 38 C.F.R. § 4.71(a),
Diagnostic Code 5227. This diagnostic code contemplates
disability to a single finger. In view of the grant of
service connection for residuals of a injury to the veteran's
right fourth finger in the above Board decision, the
provisions of Diagnostic Code 5227 are no longer appropriate
for the evaluation of the veteran's right fifth finger
disability, since he is now service connected for disability
in multiple fingers. The applicable rating criteria for the
veteran's service connected disabilities of his right fourth
(ring) and fifth (little) fingers are contained in either
Diagnostic Code 5219 for unfavorable ankylosis of the right
ring and little fingers, or Diagnostic Code 5223 for
favorable ankylosis of these fingers. Further adjudication
by the RO in regard to the veteran's service connected finger
disabilities is necessary prior to appellate consideration of
this matter.
It is also noted that the veteran last received a VA
examination of his right hand and fingers in October 1996.
At that time reference was made to contraction deformities of
the fourth and fifth fingers and to pain on gripping with the
right hand. No information was given in regard to the range
of motion in the fingers of the veteran's right hand. In
view of the absence of clinical information upon which to
base an evaluation of the veteran's service connected right
fourth and fifth finger disability, the Board is of the
opinion that a further examination of the veteran's right
ring and little fingers should be conducted prior to further
appellate consideration.
In view of the foregoing, this case is REMANDED to the RO for
the following action:
1. The veteran should be afforded a VA
orthopedic examination to determine
the nature and extent of disability
arising from the veteran's service-
connected residuals of injuries to the
right fourth and fifth fingers. All
necessary special studies should be
performed, including an X-ray of the
right fourth and fifth fingers. The
claims folder must be made available
to the examining physician so that the
pertinent medical records may be
studied in detail. The examiner
should report the pertinent medical
complaints, symptoms and clinical
findings, including any weakness of
grip and/or incoordination caused by
the right fourth and fifth finger
disabilities, any pain or tenderness
at the site of the injuries to the
veteran's right fourth and fifth
fingers, any pain on movement of these
fingers, and range of motion in the
metacarpal phalangeal joint, the
proximal interphalangeal joint, and
the distal interphalangeal joint of
the right fourth and fifth fingers in
terms of movement toward the
transverse fold of the palm. If there
is pain on movement of these fingers
before such movement is limited, the
point at which the pain starts should
be reported.
2. Then, the RO should adjudicate the
issue of entitlement to an increased
(compensable) rating for the veteran's
residuals of injuries of right fourth
and fifth fingers. If this benefit is
not granted, the veteran should be
provided a supplemental statement of
the case and afforded a reasonable
opportunity to respond. The case
should then be returned to this Board
for further appellate consideration if
otherwise appropriate.
No action is required of the veteran until he is so informed
by the RO. The purpose of this remand is to obtain
additional clinical evidence.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals